Good Questions to Know the Answers To in a Taking Case: How Much Property Was Taken and When?

It was late August in 2017 when Hurricane Harvey dumped record amounts of rainfall on Houston. Water impounded in the Addicks and Barker Reservoirs crested at record pool elevations of 101.6 feet in Barker and 109.1 feet in Addicks on August 30, 2017. The U.S. Court of Federal Claims held the Corps of Engineers liable for the flooding of upstream properties, concluding that it was the Corps’ actions—not Harvey—that caused the flooding of six bellwether Upstream properties selected to serve as test cases for the taking litigation.

Having determined the Corps was liable for the unconstitutional taking of a permanent, flowage easement, the Court instructed the parties to submit briefing as to (1) the date of taking and (2) the scope of the flowage easement taken.

Date of Taking

The Court explained that the date of taking is critical because it is a significant component of assessing the amount of just compensation due for a taking. The parties disputed the date of taking. The Government argued that the date should be February 1945 for properties upstream of Barker Dam and December 1948 for properties upstream of Addicks Dam, the dates the Corps completed construction of both dams. The Plaintiffs argued that the taking was August 30, 2017, the date that the impounded waters reached their maximum elevation.

The Court agreed with the Plaintiffs, explaining that the claim did not exist until the impoundment of water took place, and the Plaintiffs’ claim did not accrue until they actually experienced a taking. The Court noted that the “apprehension of future flooding . . . does not impose a flowage easement on a property that may be burdened by future flooding” if no actual flooding is experienced.

Scope of the Flowage Easement

The parties also disputed the size of the easement taken. The Government argued for an expansive easement, based on the maximum design spillway elevations of each dam. So defined, the Government contended for an easement that would have been broader than the extent of the water’s physical invasion in 2017. The Upstream Plaintiffs, however, argued that the easement should be limited to the maximum elevation of the pools impounded during Harvey.

The Court concluded that the scope of the easement must be defined by reference to the extent of the physical invasion and the date of taking. The Court, therefore, held: “Within the parameters of those [August 30, 2017] elevation specifications, the government took a permanent flowage easement, leaving plaintiffs a fee simple interest in their properties which allows them to continue their lawful use subject to the risk of occasional flooding caused by the operation of the Addicks and Barkers Dams.”

Conclusion

The Court granted in part and denied in part the Upstream Plaintiffs’ cross-motion for summary judgment and denied the Government’s motion to clarified. The Court then instructed the parties to proceed with expert discovery in accordance with its decision.

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